Mamdouh Rabie Mohamed Saleh v. Torture Claims Appeal Board

HCAL 257/2023

[2023] HKCFI 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 257 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 10 August 2017 refused; and

2.   The application for leave to apply for Judicial Review dismissed

Observations for the Applicant:

1.A person who claims non-refoulement protection in Hong Kong on the ground of a torture risk must provide to the Director of Immigration (“Director”) all the necessary information relevant to the claim promptly and with full disclosure of all material facts in support of the claim, as so stipulated by various sections of Part VIIC of the Immigration Ordinance, Cap 115, starting with Section 37ZA which sets out the following duties of the claimant:

“(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must –

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit) –

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board –

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

And must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

2.One of the most important documents which a claimant is required to submit to the Director in support of the claim is the Torture Claim Form (“TCF”), or the Non-refoulement Claim Form (“NCF”) in use after the commencement of the Unified Screening Mechanism (“USM”) since March 2014, or the Supplementary Claim Form (“SCF”) for use under all other applicable grounds after the rejection of an earlier torture claim, all for the sole purpose of presenting the relevant grounds of the claim together with the facts, information and evidence in support of such claim for non-refoulement protection within the required period for the proper assessment and determination by the Director, as stipulated by Section 37Y of the Ordinance:

“(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form, and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all the documents supporting the claim that are readily available to the claimant when the form is returned.

(2)  The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a)  within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b)  within any further period that an immigration officer allows under subsection (3).

(3)  An immigration officer may –

(a)  on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b)  on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form, allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4)  The torture claim form is to be in a form specified by the Director.”

3.If a claimant fails to return a completed relevant claim form as so required, the claim must be treated as withdrawn, but may be re-opened only under certain conditions being complied with to the satisfaction of an immigration officer, as provided by Section 37ZG of the Ordinance:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that –

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person – (Amended 7 of 2021 s. 14)

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person –

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.

(6) If a torture claim is re-opened under subsection (3), subject top subsection (7) and (8), processing of the claim is to continue in accordance with this Part as if the claim had not been withdrawn.

(7) Section 37Y(2) applies to the torture claim as if for paragraph (a) of the section there were substituted –

“(a) within the period of 14 days after the notice under section 37ZG(4) is given to the claimant; or”.

(8) If a completed torture claim form in respect of the torture claim is not returned in accordance with section 37Y(2) as read with subsection (7), the claim is to be treated as withdrawn under subsection (1) –

(a) on the expiry of the 14-day period; or

(b) if a further period is allowed under section 37Y(3), on the expiry of the further period.”

4.In the present case, the Applicant is a national of Egypt who had earlier in 2014 raised a non-refoulement claim on the basis that his life would be in danger if returned to Egypt, and was subsequently released on recognizance pending the process of his claim, but for the next 3 years he failed to report on his recognizance, nor did he subsequently provide his completed NCF on or before 28 March 2017 as required by the Director, and hence his claim was treated as withdrawn on 29 March 2017.

5.Some 3 weeks later on 21 April 2017 the Applicant in writing to the Immigration Department requested that his non-refoulement claim be re-opened.

6.By a letter dated 8 May 2017 to his address as stated in his request, the Applicant was required by the Immigration Department to provide sufficient evidence in writing on or before 2 June 2017 to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return a completed NCF as required under Section 37Y(2) (as the law then was before the amendments in 2021 as noted above).

7.By a letter dated 15 May 2017 the Applicant was also informed that he may seek advice from the Duty Lawyer Service (“DLS”) regarding the requirements for re-opening his non-refoulement claim, as well as a reminder dated 26 May 2017 from the Immigration Department for him to submit his evidence in support of his request by 2 June 2017.

8.These letters so sent to the Applicant were however later returned through undelivered post, and so the Applicant was requested to and did subsequently attend an interview before an immigration officer on 2 June 2017 for his request to re-open his claim.

9.By a Notice of Decision dated 6 June 2017 the Director refused to allow the Applicant to re-open his claim, and recorded in the decision the Applicant’s interview before an immigration officer as follows:

“On 2 June 2017, you attended our office and confirmed in writing that you are able to speak, write and read English. In the letter of 2 June 2017, you stated that you did not submit the non-refoulement claim form on or before 28 March 2017 because you were not feeling well at that time. You were depressed, insure and did not want to deal with people. You last consulted the doctor six months ago. You do not have any medical proof in relation to your health condition because you have not seen the doctor from February until present day. You claimed that you feel better now and thus wish to re-open your non-refoulement claim.”

10.The Director then went on to make the following findings and conclusion regarding the Applicant’s request:

“Having considered all the available information, it is not accepted that you had not been able to return the completed NCF as required due to circumstances beyond your control as you did not provide us sufficient evidence in writing to satisfy an immigration officer that you had not been able to return the completed NCF as required due to circumstances beyond your control.

You did not contact the DLS or this Department immediately after your non-refoulement claim was treated as having been withdrawn on 29 March 2017. You did not report recognizance to this Department between 13 August 2014 and 7 April 2017, despite you managed to consult the doctor relating to your problem from time to time in the past and had last done so six months ago, in around January 2017. You only requested to re-open your claim after it has been treated as having been withdrawn for over three weeks. Moreover, you do not have any medical proof to support your claimed health condition. In this regard, it is not accepted that you had not been able to return the completed NCF as required due to circumstances beyond your control. Therefore, it is decided not to re-open your non-refoulement claim.”

11.On 4 July 2017 the Applicant lodged his appeal to the Board against the Director’s decision of 6 June 2017 refusing to allow him to re-open his claim, but as his Notice of Appeal was filed outside the 14-day period required by Section 37ZS(1) of the Ordinance, the Applicant included in section 5 of his Notice of Appeal an application for late filing of the Notice with the following reasons for the delay:

“I suffer from depression feeling of hopelessness. It come like a wave take a period of time and accompanied by feelings.”

12.It is also of note that the Applicant in section 2 of his Notice of Appeal provided the following grounds of appeal against the Director’s decision:

“I have left my country and I have not a new home to go and I have not a clear idea where I may settle. I have had a relation with Christian woman and this made me face a big problem because I am Muslim. There is no safe there. Because they think that I turn into Christianity religion. That not allow in our community.”

13.In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision dated 10 August 2017 it refused to allow the late filing of the Applicant’s Notice of Appeal.

14.In its decision the Board found that the last date for the Applicant to file his Notice of Appeal to be 22 June 2017, that he was therefore some 12 days late when it was filed on 4 July 2017, that such a delay was not insignificant, that his explanation of suffering from some mental health problem was vague and unsupported by any documentary evidence despite being invited by the Board to do so or to provide further details or particulars of his alleged mental health issue, that having already raised such issue in the past before the Director on many occasions that the Applicant should have been expected to provide some supporting evidence relating to the issue but failed to do so that his reason for the delay was found to be unpersuasive, that his claimed risk of harm from his Muslim community for having a relationship with a Christian woman if real would be a localized one that can be minimized or negated by him relocating to other part of Egypt away from his home district that there is no merit in his claim or appeal, and concluded  that it was not satisfied that by reason of special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal.

15.On 20 February 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim of fear of risk of harm from his fellow Muslims in his home district over his relationship with a Christian woman which would not be acceptable to the Muslim community in his home country and that given his mental health issues that he would like to stay and live in Hong Kong but without putting forth any proper grounds for his intended challenge that the Board had erred in its decision for refusing the late filing of his Notice of Appeal, nor did he request any oral hearing for his leave application.

16.By then the Applicant was however also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4A requires that an application for leave to apply for judicial relief be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

17.As the last day of the three-month period for him to file his Form 86 fell on 10 November 2017, the Applicant was therefore more than 5 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

18.In the Applicant’s case, a delay of more than 5 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

19.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision in refusing to allow the late filing of his Notice of Appeal being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

20.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

21.In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the detailed analysis and reasoning as set out in its findings and assessment in paragraphs 12 – 26 of its decision including a proper consideration of the merits of his appeal as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Immigration Ordinance as the law than was, and as held to be necessary and relevant by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, and in the absence of any error of law or irrationality or procedural unfairness in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

22.As evidenced in its decision ([15] – [22]), the Board was clearly conscious that the Applicant’s alleged mental issue if true could well justify his delay or constitute special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal, or for that matter to explain for his failure to return his completed NCF at all, but in the absence of any necessary details or particulars of such alleged mental condition from the Applicant, or at the very least the name of the doctor or hospital that he claims to have consulted so that the Board could consider making its own enquiry, I am unable to see any fault or omission on the part of the Board in its determination of the Applicant’s application for late filing of his Notice of Appeal.

23.The crux of the matter is that the Applicant failed to submit his NCF as so required by Section 37Y of the Ordinance as noted above so as to substantiate his non-refoulement claim as part of his duties as a claimant required by Section 37ZA(1), and of which he had been repeatedly reminded by the Director as early as in 2017, and yet some 6 years since and up to his present application now before me, the Applicant has still failed to do so, and as such he has wholly failed his first and foremost duty as a non-refoulement claimant, and for which I am unable to find any justification for the Board to exercise any discretion in his favour or at all.

24.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness respectively in the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to refuse the late filing of his Notice of Appeal.

25.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of August 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1